FURTHER NOTE ON SCHUETTE V. COALITION TO DEFEND AFFIRMATIVE ACTION

Just as I finished writing on the Schuette ruling itself, I received an inquiry as to what, if any, are the implications of the ruling for federal contractors. I am still mulling over the ruling and will possibly have more to say about it in the future.  For now, though, the one thing I am sure of is that there are no implications of the ruling for contractors doing business with the federal government.

 

The full text of the Amendment is presented below with each of its nine parts.  Part 4, which is underscored, emphasizes that the initiative does not apply to loss of federal funds to the state.  That said, Part 1 of the Amendment does include “public employment” and “public contracting.”  So it is possible, I think, for any contractor to run afoul of such an amendment in applying racial or sexual preference for state or local contractors.

 

  1. The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
  2. The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
  3. For the purposes of this section, "state" includes, but is not necessarily limited to, the state itself, any city, county, any public college, university, or community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan not included in sub-section 1.
  4. This section does not prohibit action that must be taken to establish or maintain eligibility for any federal program, if ineligibility would result in a loss of federal funds to the state.
  5. Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex that are reasonably necessary to the normal operation of public employment, public education, or public contracting.
  6. The remedies available for violations of this section shall be the same, regardless of the injured party's race, sex, color, ethnicity, or national origin, as are otherwise available for violations of Michigan anti-discrimination law.
  7. This section shall be self-executing. If any part or parts of this section are found to be in conflict with the United States Constitution or federal law, the section shall be implemented to the maximum extent that the United States Constitution and federal law permit. Any provision held invalid shall be severable from the remaining portions of this section.
  8. This section applies only to action taken after the effective date of this section.
  9. This section does not invalidate any court order or consent decree that is in force as of the effective date of this section.

 

By Art Gutman, Ph.D., Professor, Florida Institute of Technology

 

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